WASHINGTON, D.C. - (Mealey's) An employer is vicariously
liable for an employee's harassment only if that employee is given the power by
the employer "to take tangible employment actions against the victim," a split
U.S. Supreme Court ruled June 24, rejecting the Equal Employment Opportunity
Commission's definition of "supervisor" (Maetta Vance v. Ball State
University, et al., No. 11-556, U.S. Sup.; See December 2012, Page 40) (lexis.com
subscribers may access Supreme Court briefs and the opinion for this case).
"We reject the nebulous definition of a 'supervisor'
advocated in the EEOC Guidance and substantially adopted by several court of
appeals. Petitioner's reliance on colloquial uses of the term
'supervisor' is misplaced, and her contention that our cases require the EEOC's
abstract definition is simply wrong," Justice Samuel Anthony Alito Jr. wrote
for the majority.
Chief Justice John G. Roberts Jr. and Justices Antonin
Scalia, Anthony M. Kennedy and Clarence Thomas joined in the majority opinion.
Justice Thomas also filed a one-paragraph concurring
opinion in which he opined that while he continued to believe Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) [an enhanced version of this opinion is available to lexis.com subscribers]
and Faragher v. Boca Raton, 524 U.S. 775 (1998) [enhanced version] were wrongly decided, he joined in
the majority opinion "because it provides the narrowest and most workable rule
for when an employer may be held vicariously liable for an employee's
Justice Ruth Bader Ginsburg wrote the dissenting opinion,
in which Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan
joined. She wrote that the majority's decision to strike from the supervisory
category those employees who "control the day-to-day schedules and assignments
of others, confining the category to those formally empowered to take tangible
employment actions . . . diminishes the force of Faragher and Ellerth,
ignores the conditions under which members of the work force labor, and
disserves the objective of Title VII [of the Civil Rights Act of 1964] to
prevent discrimination from infecting the Nation's workplaces."
Instead, Justice Ginsburg opined that the EEOC Guidance
should be followed and that the majority should have found "that the authority
to direct an employee's daily activities established supervisory status under
Maetta Vance was hired by Ball State University in 1989
as a substitute server in the Banquet and Catering Department of University
Dining Services. In 1991, Ball State promoted Vance to a part-time
catering assistant position. In January 2007, Vance applied and was
selected for a position as full-time catering assistant.
In 2001, Saundra Davis, a co-worker, hit Vance on the
back of the head without provocation. The two were discussing a
work-related duty when Davis became aggressive, shouted at Vance and slapped
Vance as she turned away. Vance orally complained to her supervisors but
ended up not pursuing the matter because Davis was soon transferred to another
Around the same time, Bill Kimes became Vance's
supervisor. She claimed that Kimes gave her the cold shoulder, made her
feel unwelcome at work and treated other employees to lunch when she was not
Vance claimed that things at her job took a turn for the
worse in 2005 when Davis returned to the Banquet and Catering Department and
the two had an altercation on Sept. 23, 2005. A few days later, Vance was
told by another employee that another co-worker, Connie McVicker, used a racial
epithet to refer to Vance and other black students on campus and boasted that
her family had ties to the Ku Klux Klan.
On Sept. 26, 2005, Vance complained orally to her
supervisor about McVicker's alleged statements, and on Oct. 17, 2005, Vance
called University Compliance to request a complaint form. While
requesting the form, Vance complained about McVicker's racially offensive
comments and Davis' slap four years earlier. In November 2005, Vance
submitted a written complaint detailing McVicker's comments and the Sept. 23,
2005, altercation with Vance.
Ball State began investigating Vance's complaint about
McVicker immediately. In the end, Kimes gave McVicker a written warning
and advised McVicker that additional violations would lead to further
A few days later, Vance complained to another supervisor,
Lisa Courtright, that McVicker referred to her as a "porch monkey."
Courtright advised Vance to tell Kimes, which Vance did. Kimes
investigated by speaking to another co-worker who Vance said witnessed the
incident. But that co-worker did not corroborate Vance's
allegation. In the end, Kimes did not discipline McVicker for the alleged
As for Vance's complaint about Davis, Kimes and his
supervisor decided that counseling both employees about respect in the
workplace was the best way to proceed because Davis had also filed a complaint
alleging that Vance cursed at her. No one was disciplined for the
incident. Around the same time, Vance claimed that Davis made references
to "Sambo" and "Buckwheat" while having a conversation with another co-worker
in Vance's presence. Vance was offended but did not complain to the university
at that time.
In December 2005, Vance told Kimes that she felt
threatened and intimidated by her co-workers. A week later, Vance filed a
charge with the EEOC, alleging race, gender and age discrimination.
On May 10, 2006, Vance filed a complaint with Ball State,
alleging that Kimes forced her to work through breaks. Ball State
investigated but found no factual basis for Vance's allegation. In August
2006, Vance filed a second complaint with the EEOC, alleging that Ball State
retaliated against her by assigning her diminished work duties, forcing her to
work through breaks, denying her the chance to work overtime hours and
unequally disciplining her.
Vance filed a complaint against Ball State in the U.S.
District Court for the Southern District of Indiana in October 2006.
While her case was pending, Ball State promoted Vance to the position of
full-time catering assistant, but her problems continued. In April 2007,
Vance filed a grievance against McVicker. Three supervisors investigated.
No one was disciplined.
The District Court ruled in favor of Ball State, and
Vance appealed. After the Seventh Circuit U.S. Court of Appeals affirmed
the District Court ruling on June 3, 2011, Vance petitioned the Supreme
Court. Oral arguments were held Nov. 26, 2012.
Daniel R. Ortiz and David T. Goldberg of Donahue &
Goldberg in New York represent Vance. Gregory G. Garre and Scott E.
Shockley of DeFur Voran in Muncie, Ind., represent Ball State.
Lisa S. Blatt of Arnold & Porter in Washington filed
an amicus brief on behalf of the Chamber of Commerce of the United
States of America. Ian P. Cooper of St. Louis filed an amicus
brief on behalf of the American Council on Education and other higher education
organizations. Sarah C. Crawford of National Partnership for Women &
Families in Washington filed an amicus brief on behalf of the National
Partnership for Women & Families, et al. Michael L. Foreman of
Pennsylvania State University in University Park, Pa., filed an amicus brief
on behalf of the National Employment Lawyers Association and AARP.
Benjamin G. Robbins of New England Legal Foundation in Boston filed an amicus
brief on behalf of the foundation. Leslie E. Silverman of Proskauer Rose
in Washington filed an amicus brief on behalf of Society for Human
Resource Management and the College and University Professional Association for
Human Resources. James B. Spears Jr. of Charlotte, N.C., filed an amicus
brief on behalf of National Retail Federation. Rae T. Van of Norris,
Tysse, Lampley & Lakis in Washington filed an amicus brief on behalf
of the Equal Employment Advisory Council. Solicitor General Donald B.
Verrilli Jr. in Washington filed an amicus brief on behalf of the United
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